Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Saturday, February 23, 2013

This is the latest post in what I half-jokingly call The Kimberlin Saga®. If you are new to the story, that’s okay! Not
everyone reads my blog. The short
version is that Kimberlin has been harassing me for over a year, his worst
conduct being when he attempted to frame me for a crime. I recognize that this might sound like an
incredible claim, but I provide video and documentary evidence of that fact; in
other words, you don’t have to believe my word.
You only have to believe your eyes.
So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

So just to review, Bill
Schmalfeldt, the BS man himself, made a threat on his radio show and then later
doubled down on it. And then on Friday,
he tried to explain way his threats.

Big picture, what the BS man is
trying to do is have it both ways. On
one hand he revels in engaging in threatening talk and behavior. On the other hand when you call him on it, he
then wants you to believe that he didn’t intend any threat. He won’t say what is coming. He won’t say who will be delivering it. But we should just trust that he is a really
good person (who defends a criminal and makes pedophilia jokes) and he would
never do anything vile to his enemies, even though he is associated with a
convicted terrorist.

And then for bonus points, when
alleged other parties threaten him he gets outraged. This is not to say that if these threats are
genuine (and not sent by Bill Schmalfeldt or one of his allies with his
knowledge), he would have no right to be outraged. But the hypocrisy is a sign of his
dishonesty, although in this case it might be the case that he is not being
honest with himself and what he is actually doing.

So he starts off his defense by
playing pretty much this clip where he made his "Ides of March" threat...

...and then he offers his first
defense, that he was only talking about Frey.
Of course the only problem with that is this. Here’s the words, written out for you:

Because somebody, in
my opinion, is paying Lee Stranahan to file these charges against me, in the
hopes that I will either break or die. I
got some fucking news for you, Stranny... Walker, Hoggy, Frey... and Frey...
beware the Ides of March.

Okay, so he wants to say that “and
Frey... beware the Ides of March” is meant as a separate thought. Well, okay, then that means the prior part “I
got some fucking news for you, Stranny... Walker, Hoggy, Frey...” is supposed
to be a separate and complete thought?
Except, what news did he have for us?
He never completes the
thought. Indeed, that part only makes
sense if you believe that the “Ides of March” threat was directed at us, too,
and he just repeated Frey’s name because he lost his train of thought.

But after saying that at worst he
was only threatening a Deputy District Attorney in California (oh, much better!),
he then protests it is only warning!
After all, that’s all it was in the original Shakespeare! Let’s listen to him making this argument.

As if calling it a warning makes
it suddenly not a threat. Consider for
instance this alleged threat allegedly not written by Schmalfeldt or one of his
allies:

So could the author of that tweet
claim that he was just giving him a warning?
“Hey, just a head’s up, I’m going to kill you.” And then it couldn’t be a threat, right? Right?

Well, of course not.

And yes, even now we don’t know
if it is a threat under the law, because we don’t know who said it and under
what circumstances. It is only a threat
when the circumstances suggest to the recipient that he should take it as
a threat. Let me illustrate this with a
simple example. Take this scene from Scrubs:

Now in this scene “The Janitor”
played by actor Neil Flynn, mouths and hand-signals that he is going to kill J.D.,
played by Zach Braff. So after the scene
was over, and the director shouted “cut!” do you think the police came in there
and arrested Mr. Flynn, the actor? Of course not. Why? Because
Flynn was just playing a role. And Braff and everyone on the set knew that,
or they reasonably should have known that.
Therefore it was not a threat as a matter of law.

So if Bill Schmalfeldt sent it to
himself, the law doesn’t call that a threat.
Or if Neal Rauahuser said to Schmalfeldt, “hey, I am going to write a
death threat using one of my sock puppets.
Act as though you take it seriously,” it also isn’t a threat. In the eyes of the law, if you know for an
absolute fact that the person is not serious, it is not a threat no matter what
words are used. But it would make
Schmalfeldt guilty of filing a false police report.

So that argument is shot
down. Now I also said on my blog that
the other day he doubled down on the threat with this video:

Now first, do you see how this
undermines his first argument? Remember
what he said about that line in Julius Caesar,
when the Soothsayer said, “beware the Ides of March.” He said this:

when the assassins
gathered in the Senate on March 15 of that year was the soothsayer one of the
people holding knives, or did the Soothsayer warn Julius Ceasar that something bad
was going to happen?

So Schmalfeldt argued that because the Soothsayer wasn’t warning
about his own conduct, according to Schmalfeldt, it was just a warning and not
a threat. But in the last clip, he
admits he is one of the metaphorical assassins!
He says he is a wheel in the cog in the machine that is going to “crush”
Frey and his unnamed minions who of course couldn’t be myself, Stranahan, and
Hoge in his mind, could they? So the hilarious thing about the first defense--it's a warning--is that he accidentally explains why his conduct is different than the Soothsayer in Shakespeare's play.

But Schmalfeldt has a brilliant
defense to this clip:

That’s right it’s a metaphor!

Just who does he think he is
fooling? First, of course no one believed
that he or one of his allies will drop a giant boulder on one or more of us and
crush us or anything like that. Likewise, when a Mafioso says in
a clichéd scene that “you better pay your protection, or you will be sleeping with
the fishes” no one thinks they will be actually dozing around fishes (except maybe Jessica Simpson). Of course it’s a metaphor, but a metaphor for
what?
He won’t say, but given his association with a convicted terrorist, one
is quite reasonable in believing that this is a threat to do violence.

No, there is no question it is a
threat, but the only question is what is it a threat of? On Friday he wanted us to believe it was a threat to do something that the law allows. But prior to that, in each case, he has used metaphors involving
violence. The Ides of March is a
reference to an assassination. And
crushing is a reference to death or serious bodily injury. And we only have his profession of good will
and decency to assure us that this is not a message that his bomber buddy Brett
Kimberlin might leave a ticking package waiting for us on the Ides of March or something like that.

I said this a long time ago, but it still hasn’t sunk in for him, apparently:

Threats don’t have to be “I plan to do X to you” or “do this or I will
do X.” For instance, in Virginia v. Black, the Supreme Court held
that merely burning a cross on another person’s yard can be interpreted as a
threat, given the historical meaning of the act. Twelve people of common
sense can recognize that even if the magic words are not said, some words are
intended as a threat. In other words, the law is not an idiot.

To give a few other examples
where Defendants were found to have made threats. In People
v. Aispuro (2007):

Defendant accosted
these two young girls, laid his hands on them, caused them to cry, did not
respond to their requests that he not hurt them, ordered them to sit in the
middle of the street and when they initially resisted, told them "If you
don't, then I will do something."

Hey! He didn’t say what he would do! Maybe if they didn’t, he would give them candy! Or maybe he would simply make a
frowny face at them. Why are they getting
so worked up?

I am being facetious of
course. The courts correctly found that to be a threat. Next up we have People
v. Mendoza (1997) involving members of the “Happy Town” street gang (a
ridiculous name for a dangerous gang):

Appellant's brother
was arrested and charged with the murder of a Pomona police officer. On August
19, 1996, [Elva] Arambula testified as a prosecution witness at his preliminary
hearing. Appellant attended his brother's preliminary hearing accompanied by
two other gang members, Raul Arvisu and Jorge Olmos, also known as
"Tank" and "Jaspar."

Two days after
Arambula testified at the preliminary hearing Arambula heard a knock on the
side door of her home in Pomona. Arambula saw appellant outside the door. She
noticed his mother stood at the gate approximately 15 feet away. After Arambula
opened the door, appellant asked if she had read the newspaper. Arambula
replied, "No, why?" Appellant told her she had "fucked up his
brother's testimony," and that "[h]e was going to talk to some guys
from Happy Town." Appellant then left. Arambula said appellant did not
appear angry or upset.

At trial Arambula
testified she did not initially take appellant's words as a threat because
appellant was always joking around. At trial she denied appellant's words alone
frightened her.

Arambula recounted a
different version at appellant's preliminary hearing. There she stated she became
frightened by appellant's words and believed they meant "they were going
to kill me for sure," "they were going to kill me," and
"they were going to come back and shoot me."

Approximately 20 to
30 minutes after appellant left Arambula heard a car honking its horn outside.
She looked out her front door and saw appellant's friend, Arvisu or
"Tank," sitting in a car parked across the street from her home. He
honked the car horn again and looked in her direction. Arambula did not go
outside because she was afraid for her life.

A few minutes later
Arambula's sister returned home and told Arambula "Tank" was looking
for her. Arambula "put all the pieces together" and became convinced
they would come back and do something to her "because she was a witness"
against appellant's brother. She called the police.

Hey! All he did was register a complaint about the
effect of her testimony, and then honked and pointed at her with his gang member
buddies. What is she so worried about?

Joking aside, the Defendant was
found guilty of numerous kinds of threats, including threatening a witness and
terroristic threats.

Here, viewed in the
light most favorable to the Commonwealth, the evidence established that, three
days after leaving a message expressing his dissatisfaction with the way he was
being treated by SRHA and announcing that "something was going to
happen," Summerlin called SRHA, wanting to speak with Williams. When told
by Riddick that Williams was unavailable to take his call, he became angry.
Yelling, Summerlin accused Riddick and all of the people at SRHA of being
racists and said "he would hate to have to blow the building up to get
[SRHA's] attention." Summerlin's comment scared Riddick. Summerlin then
told Fortner in a "loud and angry" tone of voice that he would not be
attending a particular meeting at SRHA, but, if he did, "things [would] be
popping and a-rocking." Following Summerlin's call, SRHA called the fire
department and evacuated the building.

Hey, he was saying he didn’t want to blow up the
building. How is that a threat?

Well, except the court said that
was sufficient to make out a threat to bomb a building under the law and upheld
his conviction.

And there is something else worth
noting here, too. The concept of threat
is not important merely to when threats are criminalized, or to harassment
statutes. This is also key to the
concept of coercion which is key to a number of crimes. It is rape, for instance, if you obtain a
woman’s “consent” by threat. It is
witness intimidation if you use threats to silence him or her. And threat is key to the crime of extortion
or theft by extortion.

But Bill Schmalfeldt is advocating
an interpretation of the law that would leave, for instance, many rape victim
without the ability to obtain justice.
He seems to think that it is only a threat if you say, “do this or I will
kill you” or something equally explicit.
And the upshot of his approach, if adopted in the law, is to say that a Mafioso
can tell a woman, “sleep with me or else something will happen to you” and if
she submits, she can’t later hope to see him imprisoned for raping her. All for the higher, nobler goal of allowing Bill
Schmalfeldt will be free to threaten people, but so long as he is using
figurative language. Or something.

Well, thankfully for the people
of Maryland, this is not the law. And Schmalfeldt
is going to discover this is the case this coming Thursday. Tick tock as Mr. Hoge is wont to say.

---------------------------------------

Disclaimer:

I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.

In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.

And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).

And do not contact his
organizations, either. And most of all, leave his family alone.

The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.

And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.

About Me

Just a regular, sort of cranky moderately conservative lawyer, living in the greater Washington, D.C. and ruminating on law, life and the local spectator sport known as politics.
Btw, if you want to email me, write to edmd5.20.10 [at] gmail.com. I assume by now you understand that you are supposed to use one of those @ symbols for "[at]."